Constitutional Law Prof Blog

House Republicans and the Constitution

House Republicans yesterday released a proposed rules package for the 112th Congress that included two items related to the Constitution: Republicans have proposed a reading of the Constitution on the floor on January 6; and they have proposed a requirement that all bills contain a reference to Congress's constitutional authority to enact the legislation.  (The package includes several other important proposed rules, including proposed rules that would increase transparency and rules that would limit spending by replacing the PayGo rule with a "cut-go" rule.)  

The Republicans' goal is "to refocus members of Congress, with every bill they introduce, on the Constitution."  Whatever one thinks about this--a laudable goal, or a thinly veiled attempt to promote just one interpretation of the Constitution--it's unnecessary.  House members already take an oath to support the Constitution, and House rules (Rule XIII, 3(d)(1)) already require committee reports on bills to name the congressional authority for the legislation.  (The proposed rules do away with this latter requirement.)

SDS

Guantanamo Transfers and the Separation of Powers

President Obama last week signed a defense authorization bill that prohibits the use of federal funds to transfer any Guantanamo detainee into the United States, even for the purpose of prosecution in an Article III court. 

The provision raises serious separation-of-powers concerns.  As David Rivkin and Lee Casey wrote last week in the Wall Street Journal:

The president is the chief federal law enforcement officer and prosecutor.  Whether, where and when to bring a particular prosecution lies at the very core of his constitutional power.  Conditioning federal appropriations so as to force the president to exercise his prosecutorial discretion in accordance with Congress's wishes rather than his own violates the Constitution's separation of powers.

Peter Margulies came to a similar conclusion writing this fall on Lawfare (but on different legislation):

A congressional limit on transfers for criminal prosecution would upset this careful balance.  Prosecutors might well believe that a prosecution in a civilian court for terrorism-related offenses would be the most appropriate path for particular detainees. . . . A bar on civilian trials would also preclude a civilian jury, and make a military commission the sole mode of trial available.  Military proceedings can be fair, but a conressional requirement that they be the sole mode of trial for conduct that has already occurred singles out current detainees for harsh treatment, and therefore would violate the Bill of Attainder Clause.

The administration itself raised these concerns just this month.  AG Holder wrote to Senators Reid and McConnell:

[The prohibition] is an extreme and risky encroachment on the authority of the Executive branch to determine when and where to prosecute terrorist suspects. . . .  [It] would undermine my ability as Attorney General to prosecute cases in Article III courts, thereby taking away one of our most potent weapons in the fight against terrorism. . . .  The exercise of prosecutorial discretion has always been and must remain an Executive branch function.

SDS

Sotomayor and Kagan as Newsworthy

Justices Kagan and Sotomayor are newsworthy subjects in these waning days of 2010, and not only because they are half of the number of women who have ever served on the United States Supreme Court (as pictured below).

However, while Kagan as the newest Justice is still being personally profiled, Sotomayor's judicial actions are being analyzed.

Nina Totenberg of NPR's Morning Edition had an discussion of Kagan's first months on the Court: although Kagan "has not written any opinions that have yet seen the light of day," she "already has big fans among her colleagues, from the conservative Justice Antonin Scalia to the liberal Justice Ruth Bader Ginsburg."  And, Kagan herself is now "relaxed and so able to be herself," because she is "no longer calculating the personal odds of advancement."   The 7 minute story is here; and it quotes from the C-SPAN interview with Kagan from earlier in December here.

Meanwhile, Joan Biskupic at USA TODAY and Adam Liptak at NYT are discussing Sotomayor as evinced by her dissents from denials of certiorari.  Both Biskupic and Liptak highlight Pitre v. Cain, a prisoner's case, which we discussed here profiling a Linda Greenhouse opinion piece.  Biskupic's article describes Sotomayor's "fervent statements protesting the majority's refusal to take some appeals, particularly involving prisoners."

Biskupic and Liptak discuss the seven cases in which there are dissents from denials of certiorari.  Biskupic profiles each case in which Justices dissented from the denials of certiorari, noting that while Sotomayor has been the most frequent dissenter, Justice Alito "has been a close second this term in publicly objecting when the majority declines a case. He protested in three cases and authored the opinion in two. On criminal matters, he tends to favor law enforcement." 

Liptak phrases it this way: "Not a single member of the court’s four-member liberal wing joined any of the three opinions written by a conservative justice. And not a single member of the court’s four-member conservative wing joined any of the four opinions written by a liberal justice."

Both Liptak and Biskupic also discuss Sotomayor's argument style: assertive.

RR

(image: from left to right, former Justice O'Connor, Justices Sotomayor, Ginsburg, and Kagan, in 2010, via)

 

Happy Grading

It's that time of year. 

Deja Vu?  Here for some helpful hints and commiserations.

 RR

Congressional Research Awards 2011

The Dirksen Congressional Center announced that it will accept applications for grants to fund research on Congress.  From the announcement:

The Center's first interest is to fund the study of the leadership in the Congress, both House and Senate.  Topics could include external factors shaping the exercise of congressional leadership, institutional conditions affecting it, resources and techniques used by leaders, or the prospects for change or continuity in the patterns of leadership.  In addition, the Center invites proposals about congressional procedures, such as committee operation or mechanisms for institutional change, and Congress and the electoral process.

Awards range from a few hundred dollars to $3,500.  The deadline is March 1, 2011.  Click here for more information.

SDS

2010 Census

Article I, Section 2, of the Constitution requires an "actual Enumeration" every ten years for the purpose of distributing seats in the House of Representatives among the states.  Today the Census Bureau released the results of its 23rd enumeration, the 2010 census.

Take a look at the details on this interactive map at the Census Bureau web-site.  In short, population gains were greatest in the South and West, with Nevada, Arizona, Utah, Idaho, and Texas topping the list (with each above 20% growth since 2000).  Michigan is the only state to lose people.

Texas is the big winner for new congressional seats; it gets four.  Florida comes in next with two additional seats.  Illinois, Iowa, Louisiana, Massachusetts, Michigan, Missouri, New Jersey, and Pennsylvania each lose a seat; New York and Ohio lose two. 

The results seem to favor right-leaning states in Congress, especially because Republicans are in a strong position in state governments for redistricting.  But the results also seem to favor right-leaning states in the electoral college (which elect the President): Under Article II, Section 1, the number of electors for each state equals the number of Senators (always two) plus the number of Representatives (which will now change).

SDS

Health Care Reform Challengers Return to Lochner Era

Simon Lazarus, public policy counsel at the National Senior Citizens Law Center, writes in the National Law Journal today that challenges to health care reform harken back to an earlier era of judicial activism, the Lochner Era.

Lazarus writes that the challenges, which argue that Congress lacks authority under the Commerce Clause to enact the individual health insurance mandate, represent the same kind of activism we saw from the Lochner Court, which overturned hour legislation as interfering with liberty interests under the Due Process Clause.  The only difference: the constitutional basis of the challenge.

But some don't see it.  For example, Lazarus points out that Judge Vinson, who is handling the challenge in the Northern District of Florida by 20 Republican state attorneys general and governors, rejected an argument in his preliminary ruling on October 14 that the mandate violates due process.  This way of thinking, he wrote, was a relic of the Lochner Era.  Congress determined that the mandate was rationally related to a legitimate end and therefore did not violate due process.

But Judge Vinson also wrote that the mandate exceeded Congress's Commerce Clause authority, declining to extend the same kind of deference to Congress's judgment on its own authority.

Lazarus highlights the inconsistency:

Opponents' challenge to the federal provision stands or falls by the same logic, whether cast as a "fundamental" incident of due process or as an implicit carve-out from Congress' authority to regulate interstate commerce.  Slipping the inquiry from one constitutional shell to another should fool no one.  If conservative jurists invalidate this linchpin of the most important domestic legislation in perhaps half a century, they will restore Lochner--letter, spirit, the whole nine yards.

SDS

Marriage Panel at AALS

We've previously posted on the problems of marriage monopoly under constitutional federalism and the E-marriage solution proposed by Mae Kuykendall and Adam Candeub. 

The topic will be under discussion at AALS this January on a "hot topics" panel scheduled for January 7, 2011 at 4.00 pm.  Panelists include:

Mae Kuykendall, MSU College of Law, Moderator
Adam Candeub, MSU College of Law, Presentation of the E-Marriage Concept
Larry Ribstein, Illinois College of Law, Critical Analysis
Anita Bernstein, Brooklyn Law College, Commentary on Marriage Essentials
Monu Bedi, Stetson School of Law, The Military Context
Aviva Abramovsky, Syracuse College of Law, State Export of Other Legal Arrangements
June Carbone, UMKC School of Law, Redefining Law and Geography

 

RR

Repeal of Don't Ask, Don't Tell Military Policy

The United States Senate has passed the Don't Ask, Don't Tell Repeal Act of 2010, H.R.2965, by a vote of 65-31 (with 4 Senators not voting).  Senator Reid had filed for cloture on the bill on Thursday.  Obama is expected to sign the bill into law.

The Don't Ask Don't Tell military policy has been under much pressure.  The military itself was no longer supportive of the policy according to an extensive DOD report issued last month.  A federal judge in California ruled the policy unconstitutional, a ruling the Obama administration appealed to the Ninth Circuit where it is presently under review.  The United States Supreme Court had previously declined to review the policy.

For those interested in teaching and writing about "social change," the Don't Ask, Don't Tell military policy provides rich material.  In addition to the recent report and cases, there has been much legal scholarship arguing against the policy, some of which we discussed here and here.  Obama has been criticized for not being more assertive in removing the policy.

Moreover, the Don't Ask, Don't Tell policy itself resulted from an eventual compromise on President  Clinton's attempt to remove the per se ban of homosexuals from the military.   Previous to Clinton's attempt to remove the ban, there had been litigation challenging the ban, including one of the earliest - - - and one of the few successful - - - cases brought by Perry Watkins, pictured right.  As the en banc Ninth Circuit described the case in its 1989 decision in Watkins v. United States Army:

The United States Army denied Sgt. Perry J. Watkins reenlistment solely because he is a homosexual. The Army refused to reenlist Watkins, a 14-year veteran, even though he had been completely candid about his homosexuality from the start of his Army career, even though he is in all respects an outstanding soldier, and even though the Army, with full knowledge of his homosexuality, had repeatedly permitted him to reenlist in the past. The Army did so despite its longstanding policy that homosexuality was a nonwaivable disqualification for reenlistment. The issue before the en banc court is whether the Army may deny reenlistment to Watkins solely because of his acknowledged homosexuality.

The court held that the Army was estopped from denying Watkins reenlistment (and a pension), although notably several judges would have held the per se disqualification unconstitutional at that time.

Additionally, any consideration of the constitutional history of Don't Ask Don't Tell should include the related matter of the Solomon Amendment.  The Solomon Amendment was aimed at law schools that were barring the military from recruiting on campus because of noncompliance with the school's anti-discrimination policy.  The Amendment provided that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds.  The challenge did reach the United States Supreme Court in Rumsfeld v. FAIR, the Court upholding the Solomon Amendment in a 8-0 decision.

What is not resolved by the Don't Ask, Don't Tell Repeal Act of 2010 is the fate of persons who were discharged under the policy.  For example, in September a federal judge ruled that the policy was unconstitutional as applied to Major Margaret Witt and ordered that she be restored to her position as a Flight Nurse in the Air Force.   The previously mentioned DOD report has a re-accession policy. 

RR

U.S. to Support UN Declaration on the Rights of Indigenous Peoples

President Obama announced yesterday at the White House Tribal Nations Conference that the U.S. will now lend its support to the UN Declaration on the Rights of Indigenous Peoples.

The Declaration is a non-binding treaty designed to protect the human rights of indigenous peoples.  It incorporates rights in the UN Charter, the Universal Declaration, and international human rights law, and specifically protects the right to self-determination and cultural rights, among others.  The Declaration was adopted in 2007 over the opposition of the United States and three other member states. 

President Obama announced on April 20, 2010, that the U.S. would reconsider its position on the Declaration.  (Two days later, the UN special rapporteur on the rights of indigenous peoples told the Permanent Forum on Indigenous Issues that "[t]he [worldwide] violations of indigenous peoples are deep, systemic and widespread.")  There's apparently little publicly available information on the review; DOJ's Office of Tribal Justice mentions it here, and the State Department mentions it here.  The Office of Legal Counsel opined in 1996 that the U.S. government could establish the kind of government-to-government relationship that it currently maintains with federally recognized Indian Tribes with "other appropriately constituted indigenous communities within the jurisdiction of the United States."  But otherwise there's no publicly available OLC opinion on the Declaration.  The only bill in Congress to support the Declaration stalled in the House Committee on Foreign Affairs.

It's not clear what "support for the Declaration" means to the administration, where the Declaration is non-binding and where many of the rights contained in it (like many of the rights contained in other international human rights instruments) exceed those provided under (or required by) the U.S. Constitution.  President Obama committed--and came through on--opening up the government to Native Americans and Native American concerns, but full compliance with the Declaration would go several significant steps further.  Given the non-binding nature of the Declaration, its rights (which exceed our own constitutional rights and traditional practices), and the government's historic treatment of Native American peoples, it seems likely that "support for the Declaration" means something like "treat the Declaration as aspirational"--a move toward recognizing the rights contained it, but stopping short of treating it as mandatory.

SDS

 

Ninth Circuit Upholds State Armenian Genocide Victim Protection

A divided three-judge panel of the Ninth Circuit last Friday upheld California's law providing for a cause of action by Armenian Genocide victims (or their ancestors) against insurance companies that sold them a policy in Europe or Asia between 1875 and 1923. 

Defendant insurance companies in Movsesian v. Victoria Versicherung AG argued that the state law was preempted by "a clear, express federal policy against the use of the term 'Armenian Genocide.'"  But the majority ruled that any executive branch communications arguing against recognition of the Armenian Genocide were outweighed by federal government statements in favor of such recognition.  Moreover, some forty states recognize the Genocide, and the federal government has never opposed such recognition.

Defendants also argued that the law was preempted under field preemption.  But the majority ruled that California's law is a valid regulation of the insurance industry, citing Am. Ins. Assoc. v. Garamendi, and its effect on foreign affairs is merely incidental, at most.

Judge Thompson wrote in dissent that the law "clearly conflicts with . . . express federal policy" against recognizing the Armenian Genocide, as evidenced by President Clinton's and President Bush's opposition to three House Resolutions to formally recognize the Genocide.  Op. at 19662-3.  As to field preemption, he wrote that the law interferes with the federal government's "primar[y], if not exclusiv[e]" authority over foreign affairs, citing Zschernig v. Miller and Hines v. Davidowitz.

SDS

Ireland's Abortion Criminalization at the European Court of Human Rights

In a lengthy decision today, the European Court of Human Rights (the Grand Chamber) held Ireland's criminalization of abortion contravened the European Convention on Human Rights as to one of the three women litigants.

Central to the decision in Case of A, B, and C v. Ireland, is Article 8 of the European Convention on Human Rights:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The challengers, A, B, and C, all residents of Ireland who traveled to the United Kingdom to obtain an abortion because of the criminalization of abortion in Ireland, argued that their rights under Article 8 were violated.

Each of the women has sympathetic circumstances.  Challenger A was impoverished, suffering from depression and recovering from alcoholism, has four children in foster care with whom she is struggling to be reunited.  Challenger B was single and feared an ectopic pregnancy.  Challenger C was in remission from cancer, and feared both a relapse and that certain treatments may have caused damage to the fetus.

The Court found Article 8 was contravened only with regard to Challenger C.  Ireland's violation was a failure to implement its existing constitutional right to an abortion when the pregnant woman's life was at stake.

The decision is thus a narrow one and certainly does not invalidate Ireland's abortion ban.

A good resource on the case is a Q&A from the BBC.  The Court's own press release is also excellent.

RR

Health Care Reform Unconstitutional, District Judge Rules

Judge Henry Hudson (E.D. Va.) today in Virginia v. Sebelius ruled the individual health-insurance mandate in the federal health care reform package unconstitutional.  Judge Hudson ruled that the individual mandate exceeded Congress's authority under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare (Tax) Clause.  The decision was unsurprising.  (Judge Hudson previously denied the government's motion to dismiss, anticipating his ruling on the merits here.)  Here are some highlights:

• The Commerce Clause.  Judge Hudson ruled that the individual mandate exceeded congressional authority under the Commerce Clause, because it regulates "inactivity," not economic activity.  Judge Hudson described this as unprecedented--leading to unfettered congressional authority.  The mandate wasn't saved by an aggregation theory, taking the aggregate economic effect of decisions not to purchase health insurance.
• The Necessary and Proper Clause.  Judge Hudson ruled that the Necessary and Proper Clause added nothing to the Commerce Clause: If the power's not in the Commerce Clause, the Necessary and Proper Clause doesn't give Congress the power to do it.  This is rather breathtaking, given the Supreme Court's ruling last term in U.S. v. Comstock, upholding the federal civil commitment statute under the Necessary and Proper Clause, and, in the course, reinforcing a broad reading of the Necessary and Proper Clause.
• The General Welfare Clause.  Judge Hudson ruled that the mandate operated as a penalty masquerading as a tax.  Interestingly, he pointed to congressional intent here, suggesting that the tax for failing to purchase health insurance is, in fact, a penalty.  (He didn't similarly defer to Congress on the Commerce Clause and Necessary and Proper Clause.)
• The Tenth Amendment.  The Tenth Amendment played a very minor role in the decision.  Judge Hudson quoted it at the end of his tax analysis, writing first that Congress has defined authority under the Constitution under Article I, Section 8, and next merely quoting and citing the Tenth Amendment.
• Relief.  Judge Hudson severed the individual mandate and directly dependent provisions from the rest of the legislation, ruling that only those sections are unconstitutional (and preserving the rest of the legislation).  He also only issued a declaratory judgment, not injunctive relief.  The ruling is thus quite narrow and recognizes that the issue will be resolved finally in the higher courts.

We most recently posted on health reform lawsuits here, in Liberty University v. Geithner.  In that case, the federal district judge dismissed a similar constitutional challenge to reform.  Check out the ACA Litigation Blog for litigation documents in all these cases.

SDS

 

Supreme Court Denies Certiorari in Lawyer Advertising Case

Last March, the Second Circuit in Alexander v. Cahill affirmed a declaration that substantial portions of the New York's professional responsibility rules were unconstitutional.  Today, the United States Supreme Court denied a petition for writ of certiorari.

The regulations at issue were a series of content-based restrictions intended to protect the public from potentially misleading advertising by attorneys.  N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c) provided in relevant part that

(c) An advertisement shall not:

(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter that is still pending . . .

(3) include the portrayal of a judge . . .

(5) rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence . . .

(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results

Applying the test from Central Hudson Gas & Electric v. Public Service Cmm'n of NY (1980), the Second Circuit first focused on whether the speech being regulated was misleading, thus making the remainder of the Central Hudson analysis unnecessary. 

The court observed that the regulation (and the Bar) conflated irrelevant and misleading, and further assumed that the Bar could accurately predict what the public would find relevant.  The challengers to the regulations included the Alexander & Catalano law firm, with its motto "The Heavy Hitters" and a series of commercials available on its website. 

As the court stated,

the sorts of gimmicks that this rule appears designed to reach-such as Alexander & Catalano's wisps of smoke, blue electrical currents, and special effects-do not actually seem likely to mislead. It is true that Alexander and his partner are not giants towering above local buildings; they cannot run to a client's house so quickly that they appear as blurs; and they do not actually provide legal assistance to space aliens. But given the prevalence of these and other kinds of special effects in advertising and entertainment, we cannot seriously believe-purely as a matter of “common sense”-that ordinary individuals are likely to be misled into thinking that these advertisements depict true characteristics. Indeed, some of these gimmicks, while seemingly irrelevant, may actually serve “important communicative functions . . . .

The court then proceeded through the rest of the Central Hudson balancing test for commercial speech.

ConLawProfs who are (still) looking for a good commercial speech problem for an exam might take a look at the Second Circuit case.  ConLawProfs looking for materials for next semester might also take a look at the case: it's a good way to combine professional responsibility issues and the First Amendment.  And from my experience, showing some of the commercials in class is fun.

RR

Porteous Impeachment

The Senate, sitting as a Court of Impeachment, voted last week to convict U.S. District Judge G. Thomas Porteous, Jr. (E.D. La.), on all four articles of impeachment passed by the House.  Porteous is only the eighth federal judge removed from the bench by Congress.

Prof. Jonathan Turley (GW) represented Porteous in the Senate.  (His argument begins at the bottom of the middle column here.)  He raised three "constitutional issues that are rather unique and of considerable concern among law professors and legislators alike":

• Impeachment Article II (alleging corruption, including corruption before Porteous was appointed to the federal bench) "is widely recognized as a pre-Federal claim"--i.e., it involves behavior prior to Porteous's appointment to the bench.  Turley argued that no impeachment has been based upon pre-Federal claims, and the Congress shouldn't start here.  (Turley references a characteristically excellent Congressional Research Service report on impeachments and removals, with focuses on recent impeachments of Judge Kent and Judge Porteous.)
• Impeachment Article I (alleging corruption in the Lifemark case, in which Porteous had a financial relationship with the law firm representing the defendant, and declined to recuse himself) draws upon an "honest services" theory.  But the Supreme Court confined the federal honest services act to kickbacks and bribery last term in Skilling v. United States to avoid vagueness problems--after the House passed its Articles.  Turley argues that Congress, like the Court, should reject an honest services theory.
• Each Article relies upon "aggregation."  Turley explained why this is a constitutional problem:

Aggregation is a method by which House Members, when drafting Articles of Impeachment, can circumvent the high vote required in the Constitution.  They can essentially remove a Federal judge even though less than two-thirds of [Senators] agree on any specific allegation.  This is accomplished by combining different claims in one article so that no single act is subject to a stand-alone vote.  By lumping together or aggregating issues, you can secure total votes even if only 5 or 10 Senators might agree that any given act is sufficient to remove a Federal judge.  That negates article I, section 3, which says "no person shall be convicted without Concurrence of two-thirds of the members present."

Prior to the Senate vote on removal, the Senate voted unanimously (94-0) against disaggregating the Articles.  Here are the votes on the Articles:

Article I: 96-0, guilty

Article II: 69-27, guilty

Article III (false statements in a personal bankruptcy filing): 88-8, guilty

Article IV (knowingly made false statements to the Senate and FBI during confirmation): 90-6, guilty

SDS 

 

"Hippies"

There has been a resurgence of "hippies" in political and constitutional discourse. Yet another example is Paul Krugman's post today at the NYT.  Krugman criticizes a column in WaPo by  Dana Millbank for praising President Obama for "punching the hippies" and rewriting recent health care reform history "as a story of how those DF hippies got in the way, until the centrists saved the day."  Although Millbank does not use the word "hippies" in his column, the "hippie" motif - - - including the twinned adjectives acronymized as "DF" - - - has been percolating with more and more energy of late.

Thus, it's a good time to recall US Dep't of Agriculture v. Moreno, 413 U.S. 528 (1973), also affectionately known to many students as the "hippie foodstamp case."  In Moreno, the Court held a provision unconstitutional even as it applied rational basis review under the equal protection clause.  As the Court stated:

The legislative history that does exist, however, indicates that that amendment was intended to prevent so-called "hippies" and "hippie communes" from participating in the food stamp program. See H. R. Conf. Rep. No. 91-1793, p. 8; 116 Cong. Rec. 44439 (1970) (Sen. Holland). The challenged classification clearly cannot be sustained by reference to this congressional purpose. For if the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, "[a] purpose to discriminate against hippies cannot, in and of itself and without reference to [some independent] considerations in the public interest, justify the 1971 amendment.

413 US at 527-528. 

Moreno paved the way for the "animus" exception to a legitimate government interest that decisive in Romer v. Evans and is being argued in the Proposition 8 appeal now under consideration by the Ninth Circuit.

RR

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Redistricting, in Plain English

Justin Levitt and Erika Wood of the Brennan Center recently released A Citizen's Guide to Redistricting, a plain-spoken, but quite thorough, examination of political, policy, and constitutional issues related to legislative redistricting--just in time for the spate of activity next year.

 

 According to Wood's Foreword, "[t]he Guide will provide engaged citizens with the knowledge and tools that they need to get involved with this round of redistricting, and to work towards continuing reform to open up the redistricting process in decades to come."  It's also a terrific introduction for law students studying voting rights.

SDS
 

Jim Morrison Pardoned

As the New York Times reports Florida's clemency board has unamiously voted to pardon Jim Morrison posthumously.  Our discussion last month of the possibility of pardon for the indecent exposure and profanity trial and possible First Amendment problems is here.

The NYT includes Governor Crist's statement, in which he states:

During the trial, some witnesses testified they saw the alleged acts for which he [Jim Morrison] was charged; however, many others testified they observed the entire concert and never saw them. In fact, so many witnesses corroborated Mr. Morrison’s testimony that the judge eventually stopped the defense from presenting any more – because their collective testimony became, what is known in legal terms as, “cumulative testimony.”

***

Mr. Morrison appealed his judgment and sentence; however, he died before the appeal was heard. His death prevented him from exercising his right to a direct appeal, a right given to every American by the United States Constitution. If his appeal had been heard, a reviewing court could have resolved the controversies surrounding his conviction.

RR

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IMAGINE: A Quick ConLaw Quiz on the 30th Anniversary of John Lennon's Murder

                    Closed book: no use of notes, databases, internet or other sources.

Q:  Name that footnote (Name of case and author of footnote)

     The lyrics are as follows:       

“Imagine there's no heaven
It's easy if you try
No hell below us
Above us only sky
Imagine all the people
Living for today ...
“Imagine there's no countries
It isn't hard to do
Nothing to kill or die for 
And no religion too
Imagine all the people
Living life in peace ...
“You may say I'm a dreamer
But I'm not the only one
I hope someday you'll join us
And the world will be as one

“Imagine no possessions
I wonder if you can
No need for greed or hunger
A brotherhood of man
Imagine all the people
Sharing all the world ...
“You may say I'm a dreamer
But I'm not the only one
I hope someday you'll join us
And the world will live as one.”

J. Lennon, Imagine, on Imagine (Apple Records 1971).

A:  See comments.

 RR

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Chamber of Commerce v. Whiting Oral Argument Analysis: An Arizona Immigration Statute Before the Supreme Court

The Court heard oral argument this morning in Chamber of Commerce v. Whiting, a constitutional challenge on Supremacy Clause/preemption grounds to the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. § 23-211 et seq., that sanctions employers for knowingly or intentionally employing "unauthorized aliens."   The law was signed by then-governor of Arizona Janet Napolitano, who is now Secretary of Homeland Security and tasked with enforcing federal immigration law, an "irony" noted by Nina Totenberg of NPR.

The Court granted certiorari in late June to review a Ninth Circuit opinion upholding the constitutionality of the Arizona statute.  [The case was formerly known as Chamber of Commerce v. Candelaria].  While the statute at issue is not the notorious Arizona SB1070, the attention that SB1070 has garnered is not irrelevant and may have contributed to the Court's grant of certiorari.

Justice Kagan has recused herself and did not participate in today's argument.  As Solicitor General, she filed a brief on the petition for writ of certiorari; the Solicitor General's brief advocated that the writ be granted, limited to the first question presented," that question being one of express preemption of the Legal Arizona Workers Act by  8 U.S.C. 1324a(h)(2)—which preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”  That is precisely the issue before the Court.  Acting Solictor General Neal Katyal argued on behalf of the United States, supporting the Chamber of Commerce.

Arguing for the Chamber of Commerce Carter Phillips quickly articulated the notion that the Arizona statute provides for a “death penalty to the business” in that it might completely “eliminate the business's right to exist.”  This "right to exist" occurs because Arizona's statute relies upon a provision in the 1986 federal statute, the Immigration Reform and Control Act (“IRCA”), regarding state authority to impose sanctions through licensing and similar laws. 

"Licensing" turns out to be an ambiguous term, although in today's oral argument Kennedy admits he initially thought, "Oh, well, licensing, that is a defined term; I will look in Corpus Juris Secundum or ALR or something," a sentiment echoed throughout the arguments.  Roberts and Alito seemed more certain than Kennedy that "licensing" was a clear and rather broad term that granted the state wide latitude. 

Sotomayor, however, had a different point: "how they define "license" or not is irrelevant to me."  She asked Carter Phillips to explain the preemption of the state's ability to adjudicate, which for her is the central question. 

In her argument, Mary O'Grady, Solicitor General of Arizona, emphasized the ability of the state to make determinations under the "savings clause" regarding licenses.  However, at one point, Scalia seemed to believe her argument was too narrow:

JUSTICE SCALIA: Excuse me. Are you conceding that any variation from the Federal standards for -- for criminal and civil liability is automatically precluded?
I mean, as I read the exception, it's an exception for State licensing and similar laws. And it doesn't say, "So long as those licensing and similar laws go no further than what the Federal government has done." I mean, we often allow States to impose regulatory requirements that go beyond the regulatory requirements that the Federal government has imposed, and that is not automatically considered to be preempted. So why -- why are you conceding that Arizona cannot go a whit beyond what the Federal government says?
MS. O'GRADY: Because I think what Congress preserved for us was our ability to impose sanctions, including the suspension and revocation of State laws. But I do think they established a uniform national standard. I don't think we could, for example, establish a strict liability offense in Arizona. We would have to have a scienter requirement as they have in Federal law.

Breyer expressed concern that the state law essentially encouraged discrimination in conflict with the federal statute:

JUSTICE BREYER: Congress has passed a statute that gives the employer just as much incentive to verify, so there is no discrimination, as to dismiss, so there is no illegal hiring. It's absolutely balanced. A $1,000 fine for the one, a $1,000 fine for the other.

So Arizona comes along and says: I'll tell you what, if you discriminate, you know what happens to you, nothing? But if you hire an illegal immigrant, your business is dead. That's just one thing they do. Now, how can you reconcile that intent to prevent discrimination against people because of their appearance or accent -- how do you reconcile that with Arizona's law?

If Kennedy is the deciding Justice, two of his comments to O'Grady arguing on behalf of Arizona may be indicative that the Court will conclude that the state statute is preempted:

JUSTICE KENNEDY: But you are taking the mechanism [E-VERIFY] that Congress said will be a pilot program that is optional and you are making it mandatory. It seems to me that's almost a classic example of a State doing something that is inconsistent with a Federal requirement.

JUSTICE KENNEDY: Just so you know, I interpret your answer as confirming the implication of Justice Breyer's questions that there is a very substantial difference in Federal and State law on this point. I mean, you told about -- you know what lawsuits are about. If you are home free, a driver's license and Social Security inspection under Federal law and you're not under State law, that is a difference.

RR

[image: Max Liebermann, Women in a canning factory, 1879 via].